Balancing protest rights and the rise in antisemitism

Many people are troubled by Israel’s responses to Hamas‘s October 7, 2023, attack on its civilians and have protested against the Israeli response, often on college campuses, including those here in Maryland. The conduct of some protesters went too far and caused some Jewish students to fear for their safety. In other cases, protesters attacked Jews and not Israel. Other protesters stayed within proper boundaries, protesting the actions of Israel and its leaders. These protests raise several important questions, one of which we address here.

We have asked ourselves, are these organized activities antisemitism because in part, they are critical of the activities of a Jewish state and Jews everywhere and if yes, to what extent are they protected by the First Amendment because they are only critical of a Jewish state and it’s Jewish leaders or if critical of Jews they do not constitute a true threat to incite imminent lawless action aimed at, or harassment of, Jews. We find that sometimes it’s not so easy to differentiate criticism of a country and its leaders from antisemitic attacks on those who share a religion with the founding religion of that country. And other times it is very clear.

Criticism of a country and its leaders is a world apart from criticism, discrimination, or hostility towards Jews, as individuals or groups or their institutions, all of which are acts of antisemitism and must not be permitted or tolerated. Impermissible acts of antisemitism include calling for the destruction of Israel, blaming Jews individually or as a group for Israeli actions in Gaza, vandalizing property owned by Jews, and threats and acts of violence directed at Jews. There are other acts that are antisemitic. As we attempt to discern what is antisemitic from what is not we must remember that popular or unpopular in some quarters, legitimate criticism of Israel, without threats to Jews, is not antisemitism. And even some antisemetic speech is legally protected, although it need not be tolerated on private college campuses as opposed to state campuses unless it incites violence or constitutes harassment.

But pointing fingers at Jews for Israeli actions in Gaza, and incidents of harassment, vandalism, and even mortal violence, are rising. According to the Anti Defamation League, antisemitic incidents have increased 3.5 and nine times in the last five and 10 years. ADL claims that a majority of these incidents are related to Israel and Zionism. In 2024, Maryland suffered a 5% increase in antisemitism over the prior year and as a state it has the six highest number of reported incidents in the United States.

Some antisemitic acts have been both violent and tragic. Recall a murderous rampage in a Pittsburgh synagogue, the recent murder of two young Israeli Embassy staffers as they left an event in Washington hosted by the American Jewish Committee and very recently numerous people were injured, some critically, in a Boulder, Colorado fire bombing. And there was the burning of the mansion of the Jewish governor of Pennsylvania on the night he conducted a Seder. Vicious attacks against Jews are increasing, and deadly weapons are taking the place of placards, slogans, chants and loud voices. These recent attacks are mostly aimed at Jews, individuals and in groups, only because they are Jews. The Boulder attack occurred not at a rally in support of Israel, but in support of Hamas returning the 58 remaining Jewish hostages.

Attacks are expected to increase.

The government, state and federal, must adopt a zero tolerance policy regarding antisemitic acts and prosecute and punish acts that are not protected by the First Amendment when they occur. They must all be reported to government officials. If punishable acts of antisemitism are not reported and prosecuted they will increase. Yet there is a fine line between a repulsion for antisemitic conduct and the right to exercise our rights to protest and remain vigilent against antisemitism. We do not want to extinguish our democratic right to peacefully protest and criticize the actions of a third-party, including the government and leaders of Israel, including on college campuses. If the right to protest peacefully is conflated with what are wrongly considered acts of antisemitism, and peaceful protest is prevented as a result, we as a democracy have lost a very important right and in the future the precedent established now will be applied to the exercise of other examples of unpopular rights. We must therefore distinguish those acts that are permissible from those that are not, and not interfere with those that are protected. Both our rights under the Constitution and the rights of Jews to live free from harassment and violence must be protected and preserved.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Nilson

Catherine Curran O’Malley

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.